To Sue Or Not To Sue: That Is The Question: Whether ‘Tis Nobler…To Mediate First

With apologies to Willie Shakespeare, what I’m onto here are presuit mediations. We’ll call them, for short, “presuits.” Why do so many litigants await the commencement of litigation and a court order before they go to mediation?

Perhaps, attorneys believe their clients do not have the benefit of the confidentiality assured by Florida Statutes in court ordered mediations, thus inhibiting a mutually collaborative and successful negotiation. Perhaps, they believe they cannot have sufficient information to resolve adequately their disputes without the benefit of extensive discovery. Perhaps, they believe they will reveal weakness in agreeing—heaven forbid, requesting!—early, voluntary mediation. Perhaps, they believe the cost of early, voluntary mediation is wasted, because it cannot be successful for all the above reasons.

Perhaps, just perhaps, they are wrong on all counts.

Confidentiality in voluntary mediations—before or after commencement of suit—can be readily assured with the use of Florida Mediation Group’s form Confidentiality Agreement that merely has the parties agreeing to adopt the statutory provisions that would otherwise apply to a court ordered mediation. There is no need for attorneys to spend the time negotiating and drafting such an agreement. FMG’s form has never been challenged.

Sufficient information? Did you know settlements in presuits are reached almost as frequently as those in mediation after suit is filed? The proof of the pudding, etc. One major insurance carrier recently informed me its presuit mediation settlement percentage in one of its service areas is close to 90%, as compared to less than 60% for their mediations after swords are drawn. My personal experience in helping to reach settlements in presuits is about 70%, only slightly more in court ordered mediations. The fact is in most cases both sides already know just about everything that is important to know about the case. If both sides are doing their jobs, they have at least secured enough statements and other data to let them know what they are facing, good and bad. They just have not found a way to, in their minds, safely and effectively communicate the information. The mediation process, with the mediator in the caucusing stage carefully conveying information from one side to the other and respecting confidentialities requested in caucus, offers those means of communication. And I hardly need mention the cost saving. Clearly, settlement before suit is filed avoids the significant outlays in cost, time and stress. The cost of mediation is minimal by comparison.

Mediating early does not indicate weakness. Presuits are becoming increasingly popular with insurers. They, too, see the savings in resolving disputes before launching into expensive litigation—in many cases involving a costly retention of outside counsel. Some of the savings often go into the claimant’s pocket.

Presuits are a win-win for all participants. Insurers clear up their backlog of files, attorneys recover fees in a greater number of cases within a shorter time span, and claimants are reimbursed earlier (often with the benefit of a lower contingency fee) and avoid the stress, delay and uncertainty of litigation.

As the commercial once said: “If’n you ain’t tried it, don’t knock it!” Indeed, I believe you’ll be pleased with the outcome in most instances. Even where a settlement does not occur, the groundwork for one is established.


Edward P. Ahrens

Ed Ahrens has been a member of the Florida Bar for over 43 years. He is a certified state and federal court mediator in Tampa, Florida. He is also a freelance writer and former president of National Writers Association, South Florida Chapter. He is the author of the popular book,… MORE >

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